Transit Public-Private Partnerships: Legal Issues (2014)

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25 cate project risk,”288 as well as to compensate a private partner for capital or operating ex- penses.289 Availability payments typically begin when construction is complete and a facility is operational to “smooth [the] upfront capital ex- pense” over the life of an asset.290 Availability payments may make it possible for a private partner to have a higher credit rating, thus im- proving its access to capital markets and private lenders.291 If availability payments are author- ized, a proposed PPP project may attract more investors and contractors.292 Availability payments may make it possible to have a PPP project that otherwise would not be built.293 An availability payment structure may be used to reduce a project’s risk profile, permit a transit agency to control user fees, and cap a pub- lic sponsor’s total payment obligation.294 The payments may include credits for “enhanced per- formance” or deductions for a failure to meet re- quired performance standards.295 Availability or performance-based payments may be used, for example, with DBOM and DBFOM forms of pro- ject delivery.296 For example, if availability pay- ments are to be made in connection with a DBFOM contract, a transit agency would pay the private partner a preestablished, maximum peri- odic payment.297 PPPs for projects partially funded by an avail- ability payment structure include the Oakland 288 Implementation of PPPs for Transit, supra note 24, at 7. 289 KPMG LLP, Availability Payment Mechanisms for Transit Projects, at 4 (2009), hereinafter referred to as “Availability Payment Mechanisms for Transit Pro- jects,” available at http://www.pwfinance.net/document/research_reports/1 0%20KPMG%20availabillity.%20pdf. 290 Implementation of PPPs for Transit, supra note 24, at 8. 291 Availability Payment Mechanisms for Transit Projects, supra note 289, at 11. 292 Id. 293 Implementation of PPPs for Transit, supra note 24, at 8. 294 Availability Payment Mechanisms for Transit Projects, supra note 289, at 11 (e.g., 25–35 years rather than 50 or more years with full concession agreements). 295 Id. at 4; Implementation of PPPs for Transit, su- pra note 24, at 8. 296 Implementation of PPPs for Transit, supra note 24, at 12. See id. at 35-12 for chart indicating how availability payments may be used. 297 Availability Payment Mechanisms for Transit Projects, supra note 289, at 4. Airport Connector and the Denver Eagle P3 East Rail and Gold Rail Lines.298 In the responses to the survey, only SEPTA stated that it would agree to an availability payment structure for a PPP project.299 VI. COMPATIBILITY OF PPPS WITH FEDERAL LAW AND REGULATIONS A. Compliance with FTA Requirements When a project is paid for in part by federal funds, federal legislation may conflict with the flexible approach needed for a PPP for a transit project. DOT and other sources have stated that “[t]he success of PPPs can be facilitated or signifi- cantly constrained by the legal and regulatory environment in which they function,”300 and that “[m]any of the policy measures interwoven with transportation legislation are counter to the profit motive of private investment.”301 The approval process, for example, for New Starts projects is not entirely compatible with the use of alternative methods of project delivery and PPPs. One reason is that “the process is sequential and phased with approvals granted separately and at certain deci- sion points.”302 One reason for delays in approvals and funding is that the New Starts program “is closely aligned with the conventional design-bid- 298 See Alistair Sawers, Ernst & Young, Partnerships in Transportation Workshop, Transportation PPPs be- yond Toll Roads (citing BART—Oakland Airport Con- nector, available at http://www.ncleg.net/document sites/committees/21stCenturyTransportation/Prioritizat ion-Best%20Practices-Efficiency/References/Sawers.pdf. See also FasTracks: Eagle P3 Project (stating that RTD will make availability payments to the private partner for a 29-year period and will retain ownership of all assets), available at http://www.rtd-denver.com/FF- EagleP3.shtml. 299 SEPTA Response (re: Wayne Junction Combined Heat and Power Plant project). 300 FTA Report to Congress on PPPs, supra note 5, at 23. Issues that transit agencies must deal with involve the FTA process and procurement rules, preliminary engineering, final design, right-of-way acquisition, the contracting process, the timing of a PPP agreement in relation to environmental approvals, and the availabil- ity and timing of public and private funds. Id. 301 Ellen M. Erhardt, Caution Ahead: Changing Laws to Accommodate Public-Private Partnerships in Trans- portation, 42 VAL. U.L. REV. 905, 934 (2008), hereinafter referred to as “Erhardt.” 302 Public Transportation: Federal Project Approval Process Remains a Barrier, supra note 170, at 22.

26 build approach.”303 There have been delays while project sponsors wait for federal approvals, delays that caused additional expense and loss of effi- ciency and quality.304 However, MAP-21 repealed or consolidated several FTA programs and provided for the streamlining, discussed below, of FTA’s New Starts program,305 but “[s]imilar to SAFETEA-LU, New Starts projects are defined as projects with a total capital cost of $250 million or greater or that are seeking $75 million or more in section 5309 funding.”306 As a result of MAP-21, Core Capacity Improvement projects are eligible for § 5309 fund- ing.307 Core capacity improvement projects are projects that expand capacity by at least 10 per- cent in existing fixed guideway transit corridors that are at or above capacity or that are expected to be at capacity within 5 years.308 New Starts and Core Capacity Improvement projects receive con- struction funds through a Full Funding Grant Agreement (FFGA). The FFGA “defines the scope of the project and specifies the total multi-year federal commitment to the project.”309 Under 49 303 Id. at 23. FTA, however, permits “various pro- curement strategies, including bid/sealed bidding, com- petitive proposal/RFPs, and qualifications-based pro- curement where the preponderance of the work is [for] design professional services.” See FTA Report to Con- gress on PPPs, supra note 5, at 33 (citing FTA Circular on Third Party Contracting Guidance, supra note 237, § 9). See most recent FTA Circular on Third Party Con- tracting Guidance, supra note 241. FTA “encourages agencies to use a ‘best value’ selection process for the selection of a ‘turnkey’ contractor, including incorpora- tion of a negotiation phase in the procurement.” Id. (cit- ing FTA Best Practices Procurement Manual § 6.1.4). 304 Public Transportation: Federal Project Approval Process Remains a Barrier, supra note 170, at 22. Ac- cording to a study in 2007, project sponsors perceive that the process is unduly “intensive, lengthy, and bur- densome.” Id. 305 FTA Summary of MAP-21, supra note 15. 306 Notice of FTA Transit Program Changes, Author- ized Funding Levels and Implementation of the Moving Ahead for Progress in the 21st Century Act (MAP-21) and FTA Fiscal Year 2013 Apportionments, Allocations, Program Information and Interim Guidance, hereinaf- ter referred to as “FTA Notice of Program Changes— MAP-21,” 77 Fed. Reg. 63,670 (Oct. 16, 2012), available at http://www.gpo.gov/fdsys/pkg/FR-2012-10-16/pdf/ 2012-25152.pdf at 63,673, 63,678. 307 FTA Notice of Program Changes—MAP-21, supra note 306, at 63,672. 308 Id. 309 Id. at 63,687. Small Starts projects receive con- struction funds through a single year grant or an expe- U.S.C. § 5309, the steps that must be completed in the process for New Starts and Core Capacity Im- provement projects include project development, engineering, and construction.310 As noted, MAP-21 supports private participa- tion in transit projects. A feature of MAP-21 is that technical assistance may be sought by project sponsors and grantees on the best practices and methods for PPPs and alternative methods of con- tracting.311 MAP-21 requires FTA to identify pub- lic transportation laws that impede PPPs or pri- vate investment in capital projects for transit agencies.312 FTA regulations must address such obstacles, while protecting the public interest, including public investment in PPPs and public transportation projects.313 FTA is to provide guid- ance on promoting “greater transparency and public access” concerning PPPs and on how best to “document compliance by recipients of Federal assistance with the requirements regarding pri- vate enterprise participation in public transporta- tion and planning and transportation improve- ment programs under sections 5303(i)(6), 5306(a) and 5307(c).”314 In regard to Small Starts, one source notes that “Small Starts is a special category of projects within the New Starts program” and that Small Starts “projects were offered a streamlined proc- ess and criteria under SAFETEA-LU that was removed under MAP-21.”315 However, according to FTA, MAP-21 has several significant provisions that may affect Small Starts. On the one hand, since MAP-21, Small Starts projects must have a total net capital cost of less than $250 million and seek a federal share of less than $75 million.316 However, MAP-21 provided for a new pilot pro- gram for expedited project delivery for New Starts/Small Starts § 5309 projects “that may dited grant agreement that defines the scope of the pro- ject and specifies the federal commitment to the project. 310 Id. For Small Starts projects the steps in the process include project development and construction. 311 FTA Summary of MAP-21, supra note 15, at 9. 312 FTA Summary of MAP-21, supra note 15, at 10. 313 Id. 314 FTA Notice of Program Changes—MAP-21, supra note 306, at 63,678. 315 Don Emerson, What’s New in New Starts: The MAP-21 Reforms, available at http://efr.pbworld.com/publications/default.aspx?id=14. 316 FTA, Fact Sheet: Fixed Guideway Capital In- vestment Grants (“New Starts”) Section 5309, link to fact sheet available at http://www.fta.dot.gov/12347_ 5221.html.

27 provide opportunities for public-private partner- ships.”317 Also, [u]nder certain conditions, MAP-21 allows for the use of ‘warrants,’ in other words, ways in which projects may qualify for automatic ratings on the project justification criteria. It also eliminates the operating efficiencies crite- rion and adds a congestion relief criterion. It requires FTA to evaluate the benefits of a Small Starts project against the Federal share of the project, rather than the total project cost when developing the project justification rating.318 Finally, FTA explains that “MAP-21…funds Small Starts projects through a single year grant or an expedited grant agreement.”319 B. Streamlining Prior to MAP-21, Section 3011(c) of SAFETEA- LU authorized the Secretary of Transportation to establish a pilot program for the purpose of dem- onstrating how the New Starts program could be streamlined to accommodate more private in- vestment in projects using alternative methods of project delivery and innovative financing and how more risks associated with transit projects could be shared by the public and private sectors.320 Pro- jects selected for the pilot program were eligible for a “simplified and accelerated review proc- ess.”321 Section 5309 as amended by MAP-21 may pro- vide opportunities for PPPs.322 MAP-21 stream- lines the development of New Starts projects by: • Eliminating the alternatives analysis re- quirement and relying instead on the alternatives reviewed during the metropolitan planning and environmental review processes, thereby elimi- nating the principal statutory requirement asso- ciated with Section 5339.323 • Reducing the number of steps in the process for projects pursuing capital investment program funding; for example, the process for New Starts and Core Capacity Improvement projects will have three steps, consisting of project develop- ment, engineering, and construction. 317 FTA Summary of MAP-21, supra note 15, at 8. 318 Id. at 7–8. 319 Id. at 8. 320 Public Transportation: Federal Project Approval Process Remains a Barrier, supra note 170, at 9; H.R. REP. NO. 110-24, Hearings on PPPs, supra note 9, at XI. 321 Public Transportation: Federal Project Approval Process Remains a Barrier, supra note 170, at 9. 322 FTA Summary of MAP-21, supra note 15, at 10. 323 Id. at 7; FTA Notice of Program Changes–MAP- 21, supra note 306, at 63,672. • Requiring FTA to develop “an expedited re- view process for determining the technical capac- ity of project sponsors to undertake the proposed project if they have recently and successfully completed at least one other new fixed-guideway or core capacity improvement project.”324 • Directing the FTA to implement changes “to improve the efficiency of the New and Small Starts process and implement the new Core Ca- pacity Improvement process through rule-making and future policy guidance, which will be devel- oped through a notice and comment process.”325 The Secretary, in determining whether a pro- ject has sufficient local support and “evidence of stable and dependable financing,” is to consider whether there are “private contributions to the project, including cost-effective project delivery, management or transfer of project risks, expe- dited project schedule, financial partnering, and other public-private partnership strategies.”326 Only one agency responding to the survey, TriMet, stated that it had encountered any issues or problems (e.g., delays in approvals, additional expense) that have affected the agency’s use of PPPs because of the FTA’s approval process for grants under the New Starts or other FTA fund- ing programs. TriMet reported that there had been some issues regarding what the agency re- ferred to as “FTA concurrence” and the “cost of staff time.” C. Streamlining and Environmental Review The impact of the environmental review proc- ess on the viability of a proposed PPP project must be considered.327 Under regulations issued by the Council on Environmental Quality (CEQ), certain activities prior to the completion of the NEPA process are not allowed, such as acquiring right-of-way, proceeding to final design, or apply- ing for an FFGA, until the issuance of a record of decision (ROD) and entry into final design. The reason is that prior actions may prejudice a deci- sion by favoring one alternative over another.328 FTA has provided guidance on the timing of procurements relative to the environmental proc- 324 FTA Summary of MAP-21, supra note 15, at 7. 325 FTA Notice of Program Changes–MAP-21, supra note 306, at 63,672. 326 Estell & Washington, supra note 14, at 19. 327 FTA Report to Congress on PPPs, supra note 5, at 33. 328 Id. at 34.

28 ess.329 FTA’s Interim Guidance allows agencies to proceed with the prequalification of proposers, “but in general does not permit an RFP to be is- sued until a ROD or Finding of No Significant Impact (FONSI) has been issued by FTA. Excep- tions to this rule have been granted on a case-by- case basis.”330 MAP-21 allows a new fixed- guideway capital project under § 5309 to “advance to the engineering phase upon completion of NEPA requirements, as demonstrated by a [ROD] with respect to the project,” a FONSI, “or a de- termination that the project is categorically ex- cluded,” subject to certain other required deter- minations that must be made by the Secretary.331 In Section 1301(c) of MAP-21, Congress pro- vided that surface transportation projects are to be expedited by substantially reducing the aver- age length of the environmental review process and, among other provisions, stated that “project sponsors shall not be prohibited from carrying out preconstruction project development activities concurrently with the environmental review proc- ess.”332 MAP-21 made changes to the environ- mental review process that are intended to accel- erate the process for major projects and expanded the list of projects that are eligible for categorical exclusions.333 However, FTA is not allowed “to waive any provision of Federal law, including la- bor protections or NEPA.”334 MAP-21 creates a “project development phase” for the completion of environmental reviews. As for activities during the development phase, an applicant, concurrently with the analysis required by NEPA, is to develop sufficient information to allow the Secretary to make findings of project justification, policies, and land-use patterns that promote public transportation and local financial commitment.335 It may be noted that no agency responding to the survey identified a particular issue or problem that it had encountered for a PPP because of the 329 See FTA Interim Guidance on DB and FFGA Process, supra note 49. 330 FTA Report to Congress on PPPs, supra note 5, at 34. 331 Estell & Washington, supra note 14, at 17 (citing 29 U.S.C. § 5309). 332 MAP-21, § 1301(c)(4)(B)(iii). 333 FTA Notice of Program Changes–MAP-21, supra note 306, at 63,677. 334 Id. at 63,678. 335 FTA Summary of MAP-21, supra note 15, at 7. See similar provision in § 5309, as amended by MAP-21, relating to core capacity improvement projects. FTA’s process for environmental review and ap- proval. D. Compliance with Other Federal Laws When transit agencies receive federal funding for a PPP project, there are other federal laws that apply.336 1. Buy America Requirements A federal law that affects PPP projects is the Buy America Act.337 With some exceptions, when funds are provided by FTA for the purchase of materials or equipment, the items must be pro- duced in the United States. The Act may result in a PPP paying higher prices.338 Since the enactment of MAP-21, procurements with FTA funds continue to be subject to the Buy America provision in 49 U.S.C. § 5323(j) and the section’s implementing regulations.339 Requests for waivers are subject to an “elevated level of scrutiny by FTA.”340 As a result of MAP-21’s amendment of § 5323(j), FTA must give notice on DOT’s Web site of FTA determinations of waivers, publish them in the Federal Register, and submit an annual report to Congress on waivers granted during the prior year.341 2. Civil Rights The civil rights laws apply to PPP projects funded by the FTA. As of August 28, 2012, FTA revised its Title VI Circular (4702.1B) concerning the requirements that FTA grantees and recipi- ents must meet.342 FTA provides guidance on when grantees must upload their updated Title VI program into TEAM-Web. The failure of a grantee to submit an acceptable Title VI program will jeopardize the grantee’s ability to receive federal funds or grants.343 336 See FISHMAN, supra note 11, at 20–25 (discussing principal issues based on federal law). 337 See 49 U.S.C. § 5323(j). 338 FTA Report to Congress on PPPs, supra note 5, at 40 (citing 49 U.S.C. § 5323 (j)). 339 See 49 U.S.C. § 5323; 49 C.F.R. pt. 661. 340 FTA Notice of Program Changes–MAP-21, supra note 306, at 63,678. 341 Id. 342 Title VI Requirements and Guidelines for Federal Transit Administration Recipients, available at http://www.fta.dot.gov/legislation_law/12349_14792. html. 343 FTA Notice of Program Changes–MAP-21, supra note 306, at 63,703.

29 Section 20023(b) of MAP-21, amending § 5332, provides that the Government Accountability Of- fice (GAO) shall evaluate the progress and effec- tiveness of the FTA in assisting recipients to com- ply with § 5332(b). The evaluation is to include a review of “discrimination complaints, reports, and other relevant information collected or prepared by the FTA or recipients of assistance from the FTA.”344 The evaluation is to include as well a re- view of the FTA process for resolving “discrimina- tion complaints filed by members of the public.”345 3. Davis-Bacon Act Under the Davis-Bacon Act,346 prevailing wages must be paid for work on construction projects that are financed by an FTA loan or grant.347 The Act requires additional recordkeeping and audit- ing. MAP-21 did not make substantive changes regarding labor standards.348 Minimum wages are determined by the De- partment of Labor (DOL) and are “based on the prevailing wages for the corresponding classes of laborers and mechanics employed on similar pro- jects in the city, town, village, or other civil subdi- vision of the state” where the work is per- formed.349 The DOL directs federal contracting officers to the Wage Determinations OnLine Pro- gram (www.wdol.gov) to obtain prevailing wage determinations.350 Although the Secretary of La- bor has the final word for wage determinations, wage determinations are calculated by the Branch of Construction Wage Determinations that con- sists of 12 analysts assigned to as many as 6 states, territories, or construction activities.351 344 Estell & Washington, supra note 14, at 53. 345 Id. 346 The Act was formerly codified at 40 U.S.C. § 276a, et seq., but is presently codified at 40 U.S.C. § 3141, et seq. 347 40 U.S.C. § 276a, et seq.; FTA Report to Congress on PPPs, supra note 5, at 40. 348 Estell & Washington, supra note 14, at 54. 349 See U.S. Dep’t of Labor, The Davis-Bacon Act, 40 U.S.C. § 276a (rate of wages for laborers and mechan- ics). 350 U.S. Dep’t of Labor, Davis Bacon and Related Acts, Wage and Hour Div., available at http://www.dol. gov/whd/govcontracts/dbra.htm; Wage Determinations Online.Gov, available at http://www.wdol.gov/. 351 40 U.S.C. § 3142(b) (2013); U.S. Dep’t of Labor, Branch of Construction Wage Determinations, Wage and Hour Div., available at http://www.dol.gov/whd/ govcontracts/stateassignments.htm (last updated Aug. 20, 2013). The DOL encourages contractors, unions, trade associations, and others to submit wage data vol- untarily to provide the DOL with additional in- formation when making wage determinations.352 However, the term “prevailing” “has been inter- preted as the mean, median, or modal wage for an area.”353 The DOL statutes, regulations, and legis- lative history do not define the term. Private bid- ders do not have standing to contest the DOL’s wage determinations, because the Act does not provide successful bidders any assurances that the minimum wage rate will be the prevailing wage rate.354 The Davis-Bacon Act is criticized for increasing construction costs substantially.355 It has been argued that the prevailing wage rate is inaccurate and that it is much higher than the market wage rate.356 One reason that the prevailing wage is 352 See Julia Vitullo-Martin, The Complex Worlds of New York Prevailing Wage (June 2012), at 10 Employers on federal prevailing wage jobs must submit weekly payroll information to the contracting agency. Certified statements must include the name, address, and Social Security number of each employee; each employee’s work classifications; hourly rates of pay, including rates of contributions or costs an- ticipated for fringe benefits or their cash equivalents; daily and weekly numbers of hours worked; deductions made; actual wages paid; and, if applicable, detailed information regarding fringe benefit programs and apprenticeship or trainee programs. Hereinafter referred to as “Vitullo-Martin,” available at http://www.arch.columbia.edu/files/gsapp/imceshared/tc t2003/PrevailingWage.pdf. 353 Glenn Sweatt & Brian Cruz, Rights and Remedies Under the Davis-Bacon Act: Analysis of Recent Propos- als for Reform 44, PROCUREMENT LAWYER 3, 6 (2008). 354 United States v. Binghamton Constr. Co., 347 U.S. 171, 177–78, 74 S. Ct. 438, 442, 98 L. Ed. 594 (1954). 355 Vitullo-Martin, supra note 352, at 5: Imposing prevailing wages on affordable housing, the CHPC [Citizens Housing & Planning Council] concluded, would in- crease the cost of labor substantially, without improving con- struction quality, while making it even more difficult for small and minority-owned subcontractors to compete with larger, es- tablished firms to build affordable housing projects. CHPC’s main conclusion was that imposing prevailing wages on the af- fordable housing industry would reduce both the supply and the affordability of subsidized housing. Martha Norby Fraundorf, John P. Farrell & Robert Mason, The Effect of the Davis-Bacon Act on Construc- tion Costs in Rural Areas, REV. ECON. & STAT. 142 (1984) (providing a quantitative analysis of the effect the Davis-Bacon Act has on construction costs and con- cluding that the Act has raised construction costs in rural areas). 356 Gerald Mayer, The Davis-Bacon Act and Changes in Prevailing Wage Rates, 2000 to 2008, Econ. Legisla- tion, available at http://economic-legislation.blogspot.

30 more than the market rate is because union wages, among other wage sources and informa- tion, are used to calculate the prevailing wage and 25 percent of the prevailing wages provided by DOL are based entirely on union wage rates.357 Finally, some states have enacted “little Bacon Acts” to cover state and local construction pro- jects. There is evidence of a decline in wage rates in those states that have repealed their little Ba- con Acts.358 4. Section 13(c) Protective Labor Arrangements Certain provisions of the federal labor laws ap- ply to any activity a private party performs under contract for a transit agency when the costs will be reimbursed by federal funds.359 One objective is to protect current employees from reductions in personnel.360 If the affected employees are union members, “the bargaining process…normally gov- erns employee rights for continued employment as well as for seniority recognition, accrued benefits disposition, pay and other benefit issues.”361 When federal funding is involved, 49 U.S.C. § 5333(b), still referred to as Section 13(c), requires that public transportation agencies protect exist- ing labor agreements, i.e., by the use of “protec- tive arrangements” that must be certified by the DOL and that must be in effect before FTA funds may be released to a mass transit provider.362 When Section 13(c) applies, transit agencies must protect employees’ rights to collective bargaining; preserve their rights, privileges, and benefits un- der existing collective bargaining agreements; maintain paid training or retraining programs; assure employees of continued employment and priority of reemployment in the event of layoffs; com/2012/04/davis-bacon-act-and-changes-in.html (Apr. 24, 2012). 357 See The Davis-Bacon Act: Protecting and Enhanc- ing American Community and Workforce Standards, Bldg. Constr. Trade Dept. AFL-CIO, at 6 (Jan. 2009), hereinafter referred to as “Protecting and Enhancing American Community and Workforce Standards,” available at http://www.ibew725.org/ImageUploads/ File/Davis-Bacon_BT_Study.pdf. 358 Protecting and Enhancing American Community and Workforce Standards, supra note 357, at 8. 359 FTA Report to Congress on PPPs, supra note 5, at 41. 360 O’Steen & Jenkins, supra note 6, at 294. 361 Id. 362 See U.S. Dep’t of Labor, Office of Labor- Management Standards, available at http://www.dol.gov/olms/regs/compliance/QandA.htm. and protect employees “against a worsening of their positions related to employment.”363 Only a few reported cases were located for the past 5 years involving Section 13(c).364 Of those cases only the case of Mancuso v. City of Durham in 2013 relates to a dispute that is relevant to PPPs.365 In Mancuso, in June 2010, the city of Durham entered into an agreement with Triangle Transit Authority (TTA) that provided for TTA to assume the management and operation of the Durham Area Transit Authority. Mancuso was employed by the city of Durham as a transit ad- ministrator from March 1997 to October 2011. He remained an employee of the city but was “on loan” to TTA from October 1, 2010, to September 30, 2011. Mancuso complained that his Section 13(c) rights were violated “when he was placed in a temporary position with duties that were not comparable to the duties of his prior position.”366 The court remanded the matter to the trial court for findings on whether the parties were bound by an arbitration clause in the union contract with the city of Durham. If the trial court holds that there is an enforceable agreement to arbitrate, the trial court must determine whether the plain- tiff’s claim comes within the “substantive scope” of the agreement.367 If so, an arbitrator will decide the merits of Mancuso’s complaint, not the court.368 5. Veterans Preference MAP-21 includes a veterans’ preference for employment on transit construction projects.369 As amended by MAP-21, under § 5325, recipients and subrecipients of federal financial assistance for a 363 FTA Report to Congress on PPPs, supra note 5, at 40. 364 City of Colo. Springs v. Solis, 589 F.3d 1121 (10th Cir. 2009); City of Colo. Springs v. Chao, 587 F. Supp. 2d 1185 (10th Cir. 2008) (referring to purchase of two buses to be used in the operation of Colorado Springs’s Mountain Metropolitan Transit service); Mancuso v. City of Durham, 741 S.E.2d 926 (N.C. LEXIS App. 2013) (unreported); DART v. Amalgamated Transit Un- ion Local No. 1338, 273 S.W.3d 659 (Tex. 2008); Utah Transit Auth. v. Local 382 of the Amalgamated Transit Union, 2012 UT 75, 289 P.3d 582 (2012); Mid-Ohio Val- ley Transit Auth. v. Amalgamated Transit Union Local 1742, 2013 W. Va. LEXIS 513 (W.Va. 2013). 365 Mancuso v. City of Durham, 741 S.E.2d 926, 2013 N.C. App. LEXIS 427 (2013) (unreported). 366 Id. at 2. 367 Id. at 7. 368 Id. 369 FTA Summary of MAP-21, supra note 15, at 10.